PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Vs WILLIAM MONTINOLA, accused-[G.R. Nos. 131856-57.

July 9, 2001] Topic: Disregard of Rank, age or sex Facts: WILLIAM was charged with robbery with homicide in and illegal possession of firearm. Criminal Case No. 47168: November 1996, in Iloilo, William was armed with unlicensed Cal. 380 Pistol Llama did then and there deliberately, willfully and criminally with violence against or intimidation of persons, with intent of gain, take and carry away cash amount of P67,500.00 belonging to Jose Eduardo Reteracion, and by reason, shot to death the said Jose Eduardo Reteracion; Criminal Case No. 47169 reads as follows: November 1996, Iloilo, William with deliberate intent and without any justifiable motive, did then and unlawfully and criminally have in his possession, custody and control one (1) Pistol Llama, caliber .380 without having obtained the proper license or permit to carry, to hold and possess, which firearm was used by William Montinola in shooting to death the victim Jose Eduardo Reteracion. January 1997,[ WILLIAM entered a plea of not guilty to both charges. Joint trial of the two cases was conducted. However, on 19 February 1997, after the prosecution had presented three witnesses, WILLIAM moved to withdraw his previous plea of not guilty; and when re arraigned, he pleaded guilty to both charges. , trial on the merits continued. At noon of November 18, 1996, appellant boarded a passenger jeepney driven by Jesus Hibinioda bound for Libertad Plaza, Iloilo City. Among the passengers was Jose Eduardo Reteracion. All of a sudden, appellant drew his gun, an unlicensed firearm, .380 caliber pistol Llama with Serial No. 170257 and directed Reteracion to hand over his money or else he would be killed Appellant aimed the firearm at the neck of Reteracion and fired successive shots at the latter. As a result Reteracion slumped dead Police Officer Garcia, who heard the shot, approached the jeep and met appellant carrying a gun. He chased appellant who ran away with his jacket bloodstained as he threw bundles of money. Garcia and the bystanders picked up the money strewn on the way by appellant. The gun used by appellant while robbing and killing Reteracion was determined by Senior The wife of the victim spent for the burial and wake of her husband an amount of P191,835.00 and failed to recover P39,500.00 which was a part of the money taken from her husband. She became depressed, sleepless and not in the mood to eat because of utter sadness resulting from the death of her husband , The trial court rendered a Joint Judgment finding WILLIAM guilty beyond reasonable doubt of the charges filed against him. It sentenced him to reclusion perpetua for the robbery with homicide and to the penalty of death for illegal possession of firearm. It also ordered him to pay the family of the victim the amounts of P50,000 as death indemnity; P191,835 for the burial and wake expenses; and P39,000 for the unrecovered part of the money taken from the victim and to pay the victims wife P100,000 as moral damages.

On 19 May 1997, WILLIAM filed with the trial court a Notice of Appeal stating that he was appealing the decision to the Court of Appeals. In an order dated 15 May 1997, the trial court directed the transmission of the records to this Court. WILLIAM imputes this lone error to the trial court: IT WOULD BE AN ERROR TO IMPOSE THE DEATH PENALTY FOR THE CRIME OF ILLEGAL POSSESSION OF FIREARM BECAUSE OF THE ENACTMENT OF REPUBLIC ACT NO. 8294 WHICH AMENDED PRESIDENTIAL DECREE NO. 1866. Issue Whether the use of an unlicensed firearm in the killing perpetrated by reason or on the occasion of the robbery may be treated as a separate offense or as an aggravating circumstance in the crime of robbery with homicide. Whether or not RTC has an error impose the death penalty for the crime of illegal possession of firearm. Ruling : Affirmed with Modification At any rate, even assuming that the aggravating circumstances present in the commission of homicide or murder may be counted in the determination of the penalty for robbery with homicide, we cannot appreciate in this case the special aggravating circumstance of use of an unlicensed firearm mentioned in the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294. Such law was not yet enacted when the crime was committed by WILLIAM; it cannot, therefore, be given retroactive effect for being unfavorable to him. Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, robbery with homicide is punishable by reclusion perpetua to death, which are both indivisible penalties. Article 63 of the same Code provides that in all cases in which the law prescribes a penalty composed of two indivisible penalties, the greater penalty shall be applied when the commission of the deed is attended by one aggravating circumstance. If we would apply retroactively the special aggravating circumstance of use of unlicensed firearm under Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, the imposable penalty would be death. The new law would aggravate the crime of robbery with homicide and increase the penalty from reclusion perpetua to death; it would not be given retroactive application, lest it would acquire the character of an ex post facto law. Hence, we shall not appreciate that special aggravating circumstance. There being no modifying circumstances, the lesser penalty of reclusion perpetua shall be imposed upon accused-appellant WILLIAM. Parenthetically, the trial court was correct in not crediting in favor of WILLIAM the mitigating circumstance of plea of guilty, since the change of his plea from not guilty to guilty was made only after the presentation of some evidence for the prosecution. To be entitled to such mitigating circumstance, the accused must have voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. The following requirements must therefore concur: (1) the accused spontaneously confessed his guilt; (2) the confession of guilt was made in open court, that is, before a competent court trying the case; and (3) the confession of guilt was made prior to the presentation of evidence for the prosecution the third requisite is wanting in the present case. We shall modify the awards of damages. The award of P191,835 for burial and wake expenses should be reduced to P117,672.26, since only the latter amount was evidenced by receipts. Likewise, considering the allegation in the information and the testimony of the victims wife that the amount of P48,200 was recovered from WILLIAM, the award of P39,000 representing the unrecovered part of the money taken from the victim must also be reduced to P19,300 (the difference between the sum of money taken from the victim [P67,500] and that

recovered from accused-appellant [P48,200]). We should also reduce the award of moral damages from P100,000 to P50,000 in accordance with current jurisprudence.

Tthe Joint Judgment of the Regional Trial Court of Iloilo City, Branch 25, in Criminal Cases Nos. 47168 and 47269 is AFFIRMED with MODICATIONS as follows: 1. In Criminal Case No. 47169, accused-appellant WILLIAM MONTINOLA is ACQUITTED of the crime of illegal possession of firearm and therefore spared the penalty of death; 2. In Criminal Case No. 47168, where the penalty of reclusion perpetua is imposed, (a) The award of P191,835 for burial and wake expenses is REDUCED to P117,672.26; (b) The award of P39,000 representing the unrecovered part of the money taken from the victim is REDUCED to P19,300; and (c) The award for moral damages is REDUCED from P100,000 to P50,000. Costs de oficio.